Tuesday, April 24, 2007

Architectural Works and Section 120(b)

In enacting protection for architectural works in 1990, Congress faced the issue of the extent ofthe derivative right: would it include the right to prohibit alterations to an authorized building? Interestingly, architects themselves did not want such a right, fearing it would enmesh them in ugly disputes with their clients. As a result, Section 120(b) was enacted:

(b) Alterations to and Destruction of Buildings. — Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.

A recent Texas case, Javelin Investments, LLC v. McGinnis, 2007 WL 781190 (S.D. Tex. Jan. 23, 2007), added a gloss to the section. As I understand it, a couple began working with plaintiffs to remodel their house, fell out over price, and using substantially similar plans generated for the remodeling, went ahead anyway. Plaintiff sued, defendant asserted Section 12o(b). Section 120)b) doesn't expressly refer to making copies of new plans, but the court found an implied right to permit such copying:

Wood's implied limitation upon § 120(b) alteration rights also defies common sense. Wood argues that the McGinnises had three alternatives if they wished to finish their house: (1) getting Plaintiffs' permission to use Plaintiffs' plans; (2) finishing construction without using any plans; or (3) substantially altering the existing structure so that it was not “substantially similar” to Plaintiffs' plans. These supposed alternatives illustrate perfectly the predicament building owners would face in the absence of § 120(b). Option 1 would give the architect a “veto” over subsequent adaptation and even repair of inhabitable buildings, a result not only impractical but also inimical to the best interest of architects in the long run. Option 2 is a recipe for professional malpractice and structural failure. No professional architect or builder would commence a substantial renovation project without drawings or plans reflecting the existing structure. One common way to generate such plans is to measure the existing structure, as the McGinnises admittedly did here. It would serve little purpose for Congress to expressly grant homeowners the right to make whatever changes they wish to their own homes, while silently denying them the practical means to exercise that very right. Option 3 merely encourages economic waste, forcing the owner to destroy work product which he has already bought and paid for. These “alternatives” to § 120(b) sharply illustrate the practical wisdom of Congress in bestowing upon building owners a limited statutory license to modify their own buildings.

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